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‘Business Day’ vs ‘Working Day’

17/04/2020

At a glance

In many commercial agreements, you will find the expressions “business day״ or “working day” used to define periods of performance time. Sometimes these terms are defined (and definitions used may vary), while on other occasions these terms are not defined and their interpretation is left somewhat to chance. Partner and Head of Financial Regulation, Daniel Tunkel provides a few considerations below.

We all broadly know what “day” means when we use it in legal drafting – though one does occasionally even here come across bizarrely convoluted attempts to define this simple Anglo-Saxon word. The idea that “business day” is introduced into the drafting demands that it means something narrower or more focused than “day” on its own. The question is what? And the Coronavirus Crisis has compelled us to ask another question, which is whether the unprecedented changes to our normal routine compels a change in the interpretation of these words?

This note cannot consider all of the nuances involved here;  the best advice we can offer in the round is that you should check your commercial agreements, see whether the “business day” or “working day” terminology is a feature of the drafting and then seek advice as to the context.

But here are a few points to ponder:

(1). If the definition you use refers to a formula along the lines of “any day except Saturday, Sunday or a national public holiday in the UK …”, there is probably no cause for alarm, as the Crisis has not changed anything here.

(2). The definition may go on to refer to the day being one “… on which banks in [location] are open/normally open for business …”. This could start to raise difficulties. It is not at all unlikely that the Coronavirus Crisis will close many a bank branch;  and doubtless this will vary for place to place. Even if the “normally open” locution is used, the longer the Crisis continues, the likelier is becomes that it is fundamentally normal for banks not to open. Sometimes you see reference to open for “… non-automated business …”, which is a means of ensuring that we don’t consider a bank to be open merely because its ATM is working. But again, it will become commoner (even without the Coronavirus Crisis) for many – even most – banks to operate purely electronically.

(3). Where an agreement refers expressly to banks operating under other jurisdictions, their regulation in terms of bank activity during the Coronavirus Crisis may be quite different from the UK’s.

What are the upshots of this? Several points spring to mind. For example, if serving a notice can only take place on a business day, you will need to check that an attempted service has actually taken place. If a party in breach has a certain number of business days to cure the breach, you might find that this runs on longer than you expected. If notice to terminate must be of a certain number of business days, check to see what this now means in practice also.

If in doubt, show the agreement to your lawyer.

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